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WALLACH V. VAN RISWICK, 92 U. S. 202 (1875)

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Wallach v. Van Riswick, 92 U.S. 202 (1875)

Wallach v. Van Riswick

92 U.S. 202


1. The Act of July 17, 1862, 12 Stat. 589, is an act for the confiscation of enemies' property, and it provides for the seizure and condemnation of all their estate. When it has been carried into effect by appropriate proceedings in any given case, the offender has no longer any interest or ownership in the thing forfeited which he can convey, or any power over it which he can exercise in favor of another.

2. The joint resolution of even date with that act was designed only to qualify, and not defeat it. The provision therein that "no proceedings shall work a forfeiture beyond the life of the offender" obviously means that they shall not affect the ownership of the land after the termination of his natural life and that, after his death, it shall pass and be owned as if it had not been forfeited. It was intended for the exclusive benefit of his heirs and to enable them to take the inheritance after his death.

3. The maxim that a fee cannot be in abeyance is not of universal application,

Page 92 U. S. 203

nor has it any weight in an inquiry as to the intent and effect of said act and joint resolution.

4. The amnesty proclamation of the President of the United States of Dec. 25, 1868, did not give back property which had been sold under the Confiscation Act, or any interest in it, either in possession or expectancy.

5. Day v. Micou, 18 Wall. 156, and Bigelow v. Forrest, 9 Wall. 339, cited and explained.

The complainants are children and heirs-at-law of Charles S. Wallach, who was an officer in the Confederate army during the late rebellion. While he was thus in that service, his real estate situate in the City of Washington was, by order of the President, seized under the Confiscation Act of July 17, 1862, and a libel for its condemnation duly filed. The lot of ground, respecting which the present controversy exists, was condemned as forfeited to the United States on the twenty-ninth day of July, 1863; and, on the ninth day of September next following, it was sold under a writ of venditioni exponas, the defendant Van Riswick becoming the purchaser. Prior to the seizure, the lot had been conveyed by Charles S. Wallach in trust to secure the payment of a promissory note for $5,000 which he had borrowed, and at the time of the seizure a portion of this debt remained unpaid and due to the defendant, to whom the note and the security of the deed of trust had been assigned. Wallach's interest in the property was therefore an equity of redemption, and by the confiscation sale the purchaser acquired that interest and held it with the security of the deed of trust given to protect the payment of the promissory note. On the 3d of February, 1866, Wallach, having returned to Washington, made a deed purporting to convey the lot in fee simple with covenants of general warranty to Van Riswick, the purchaser at the confiscation sale. His wife joined with him in the deed.

So the case stood until Feb. 3, 1872, when Wallach died. The complainants then filed this bill, claiming that after the seizure, condemnation, and sale of the land as the property of a public enemy engaged in the war of the rebellion, nothing remained in him that could be the subject of sale or conveyance; consequently that nothing passed by the deed from Wallach and wife, and that they, being his heirs, had, upon his

Page 92 U. S. 204

death, an estate in the land and a right to redeem and to have the conveyance of their father to Van Riswick declared to be no bar to their redemption. The relief sought is redemption of the deed of trust, discovery (particularly of the amount remaining due upon Charles S. Wallach's note), an account of the rents and profits of the land since the death of Wallach, a decree that his deed of Feb. 3, 1867, is of no effect as against the plaintiffs, a decree for delivery of possession of the lot, and general relief.

To this bill the defendant Van Riswick demurred generally, and the court below sustained the demurrer and dismissed the bill. Hence this appeal.

Page 92 U. S. 207

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