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BURBANK v. CONRAD.

October 1, 1877

BURBANK
v.
CONRAD.



ERROR to the Supreme Court of the State of Louisiana. This was a suit for partition of certain real property in New Orleans, and was brought in a district court of Louisiana. The defendants had judgment, which was affirmed by the Supreme Court of the State, and the plaintiff brought the case here on writ of error. The facts sufficiently appear in the opinion of the court.

The opinion of the court was delivered by: Mr. Justice Field delivered the opinion of the court.

Mr. Thomas J. Durant and Mr. J. Q. A. Fellows for the plaintiff in error.

Mr. L. L. Conrad, contra.

This is a suit for a partition of certain real property situated in the city of New Orleans in the State of Louisiana. The plaintiff alleges that he is the owner of an undivided half of the premises; that the defendants are the owners of the other undivided half; and that from the nature of the property it cannot be conveniently divided in kind. He therefore asks a partition by licitation; that is, by a sale of the premises and a division of the proceeds.

The plaintiff asserts title to an undivided half by a deed of the marshal of the United States, executed to him upon a sale under a decree of the District Court, condemning and forfeiting the property to the United States, in proceedings taken against it as the property of Charles M. Conrad, under the Confiscation Act of July 17, 1862.

The defendants assert title to the whole property by a sale by public act, made to them by their father, the said Charles M. Conrad, before the recorder and ex-officio notary-public of the parish of St. Mary, in Louisiana, on the 3d of June, 1862. This parish was then within the Confederate lines; and the Conrads, father and sons, were engaged in the rebellion against the United States. The act of sale was not placed on record in the city of New Orleans until 1870. The good faith of the parties in the transaction is not questioned, nor is the sufficiency of the consideration. But it is contended that the parties, being public, enemies in hostile territory, were incompetent at the time to transfer or to accept the title to real property situated within the Federal lines. And if this position should not be sustained, it is further contended that the act of sale not having been recorded in the city of New Orleans until after the condemnation of the property by the District Court and its sale by the marshal, the plaintiff, as purchaser, took the title unaffected by the transaction; in other words, that his position is that of a third party buying upon the faith of the title standing in the name of the elder Conrad upon the public records.

We have recently had occasion, in Conrad v. Waples (supra, p. 279), to consider the first of these questions, and it will be unnecessary here to do more than refer to our opinion in that case. And the second question requires only a brief notice. The object of requiring a public record of instruments affecting the title to real property is to protect third parties dealing with the vendor, by imparting notice to them of any previous sale or hypothecation of the property, and to protect the purchaser against any subsequent attempted disposition of it. In Louisiana, the conveyance is valid between the parties without registration, and passes the title. The only consequence of a failure of the purchaser to place his conveyance on the records of the parish where the property is situated is that he is thereby subjected to the risk of losing the property if it be again sold or hypothecated by his vendor to an innocent third party, or if it be seized and sold by a creditor of his vendor for the latter's debts. The second purchaser from the vendor and the bidder at the judicial sale would, in that case, hold the property. The United States never stood in the position of a second purchaser of the property sold by the elder Conrad. They were not purchasers at any sale of his property. They had caused his estate in the land, whatever that was, to be seized and condemned. By the decree of condemnation, that estate vested in them for the period of his life. His estate for that period was then their property. The statute declares that the property condemned 'shall become the property of the United States, and may be disposed of as the court shall decree.' It was the property of the United States, therefore, which was sold and conveyed at the marshal's sale. The United States acquired by the decree, for the life of the offender, only the estate which at the time of the seizure he actually possessed; not what he may have appeared from the public records to possess, by reason of the omission of his vendees to record the act of sale to them: and that estate, whatever it was, for that period passed by the marshal's sale and deed; nothing more and nothing less. The Registry Act was not intended to protect the United States in the exercise of their power of confiscation from the consequences of previous unrecorded sales of the alleged offender. It was in the power of Congress to provide for the confiscation of the entire property, as being within the enemy's country, without limiting it to the estate remaining in the offender; but, not having done so, the court cannot enlarge the operation of the stringent provisions of the statute. The plaintiff had notice of the character and legal effect of the decree of condemnation when he purchased, and is therefore presumed to have known that if the alleged offender possessed no estate in the premises at the time of their seizure, nothing passed to the United States by the decree, or to him by his purchase.

We see no error in the ruling of the Supreme Court of the State of Louisiana, and its judgment is

Affirmed.

MR. JUSTICE CLIFFORD dissenting.

Power was conferred upon the President, and it was made his duty by the fifth section of the act to suppress insurrection, to cause the seizure of all estate and property of the persons designated in that section, and to apply and use the same and the proceeds thereof for the support of the army. Proceedings in rem were authorized for the condemnation of such estates and property, the provision being that the proceedings should conform as nearly as may be to proceedings in admiralty or revenue cases, and that if the property is found to belong to a person engaged in rebellion, or who has given aid and comfort thereto, the same shall be condemned as enemies' property, and shall become the property of the United States. 12 Stat. 589.

Pursuant to that act, an information in proper form was filed against the several properties in controversy in these cases; and the record shows that the same were formally condemned as forfeited to the United States, as appears by the decree of the District Court, fully set forth in the transcript. Due condemnation of the several properties having been adjudged, the writ of venditioni exponas was issued; and the same were sold, the defendant in the first suit and the plaintiff in the second being the purchasers of the parcels, the respective titles of which are in controversy in these suits. Formal conveyances were made to the respective purchasers, they respectively being the highest bidders for the several parcels described in their respective deeds of conveyance.

Certain parcels of the property sold as aforesaid are embraced in Conrad v. Waples, which was commenced in the Circuit Court by the present plaintiff against the purchaser under the marshal's sale, and certain other parcels of the property are embraced in the second suit, which was commenced in the State court by the grantee of those parcels under the marshal's deed, against the defendant in error in that case.

Service was made in that case; and the defendant appeared and set up the seizure of the several parcels as the property of Charles M. Conrad, and the condemnation and sale of the same as previously explained, and the conveyance of the said parcels to him, the defendant, by the marshal as the property of the United States. Interlocutory proceedings of various kinds followed, which it is not important to notice. All such matters having been adjusted, the parties went to trial, and the verdict and judgment were in favor of the defendant. Exceptions were taken by the plaintiff; and he sued out a writ of error, and removed the cause into this court.

Fee-simple title to the premises is claimed by the plaintiff by virtue of a conveyance from his father, Charles M. Conrad, to himself and his brother, called in the jurisprudence of that State an act of sale, which was executed on the 6th of May, 1862, during the rebellion, before Joseph L. Nettles, recorder in and for the parish of St. Helena, which at the time was within the Confederate lines, the estate and property conveyed being situated in New Orleans, which at the time was in the possession of the army of the United States.

During the trial, the plaintiff offered that act of sale in evidence, in support of his title to the premises in controversy; and the defendant objected to the introduction of the same, upon six grounds: 1. That the act was not a sale, but a mere giving in payment, and that no delivery of the property was or could be made, inasmuch as the same was situated within the Federal lines, and that the act was executed within the military lines of the Confederate States, where the parties thereto were sojourning. 2. That it being admitted that the vendor and vendees had been before and were, at the date of the act and afterwards, engaged in rebellion against the United States, and so continued until the end of the war, and that the act was passed within the Confederate lines, the property being situated within the Federal lines, the act of transfer was inoperative and void. 3. That such evidence would tend to contradict the decree of condemnation previously entered in the District Court, and set up by the defendant in his answer. 4. That it being admitted that the grantor and grantees were enemies of the United States at the time the act was passed, the grantor was incompetent to complete the transfer of the property, the same being within Federal military lines. 5. That the copy of the act offered in evidence was not, by the statute of the State, admissible in evidence against any right set up by a third person, without being accompanied with proof that the same had been duly and legally registered in the proper office where the properties were situated. 6. That a state of war then existing, a deed executed in the parish of St. Helena, within the Confederate lines, could not be legally recorded in the parish of Orleans, which at that date was within Federal military lines.

These several objections to the evidence offered were sustained by the court, and the plaintiff excepted, which presents the principal question in the case.

Primarily, Burbank v. Conrad was a petition in the Fifth District Court of the city for partition, the present plaintiff, as petitioner, claiming one undivided half part of the premises under the aforesaid confiscation proceedings and sale. Process was served; and the defendants appeared and pleaded that the sale under those proceedings was void, the supposed owner of the premises having had, at the filing of the information, no right, title, or interest in the property. Instead of that, that they were the true and sole owners of the same, by virtue of a notarial act of sale executed by their father, June 3, 1862, before J. G. Parkinson, recorder of the parish of St. Mary, which presents the same question as that involved in the other case, it appearing that the place where the act of sale was executed was within the Confederate lines.

Hearing was had, and the court rendered judgment in favor of the petitioner. Prompt appeal was taken by the defendants to the Supreme Court of the State, where the parties were again heard, and the Supreme Court reversed the decree of the Fifth District Court, and rendered judgment in favor of the defendants, that they have a valid title to the property described in the petition. Judgment having been entered in favor of the defendants, the plaintiff sued out a writ of error, and removed the cause into this court.

Errors assigned by the plaintiff are, that the Supreme Court of the State erred in reversing the decree of the Fifth District Court, and in entering a decree in favor of the defendants that they had a valid title, and that they be put in possession of the premises.

Sufficient appears to show that the parties in each case claim title to a certain portion of the estate and property condemned as forfeited to the United States under the before-described confiscation proceedings. Two of the claimants, to wit, the defendant in the first suit and the plaintiff in the second, set up title as purchasers under the respective deeds of the marshal given to them respectively as purchasers at the confiscation sale. On the other hand, the plaintiff in the first suit and the defendants in the second claim title as grantees of their father, the respective conveyances bearing date during the rebellion, but before the passage of the confiscation act under which the several properties were condemned as forfeited to the United States for the treasonable acts of the father.

Conveyances of the kind appear in the record, the one to the plaintiff in the first suit having been executed May 6, 1862, in the parish of St. Helena, before the recorder of that parish, within the Confederate lines, the plaintiff alleging that the same was duly recorded May 31, 1862, and the defendant denying the allegation in his answer; and the other having been executed to the defendants in the second suit, June 3, 1862, in the parish of St. Mary's, before the recorder of that parish, which was also within the Confederate lines; nor was the conveyance ever recorded until the 8th of December, 1870, in the parish of Orleans, where the property is situated.

Argument to show that the proceedings to confiscate the properties in controversy were correct in form is scarcely necessary, as no attempt is made to impeach their formality. Seizure of the properties in controversy was duly made under the act of Congress referred to; and the information charged that the owner of the properties seized, subsequently to the passage of the act, did act as a member of the Confederate Congress, and that he was engaged in armed rebellion against the United States, and that by reason of the premises the properties described in the information, and all the right, title, interest, and estate of the owner, became and were forfeited to the United States, and ought to be condemned to their use.

Due monition issued and was served, which is notice to all the world; and no appearance having been entered, the information or libel was taken as confessed. Proofs were taken which fully established the charges; and the court entered a final decree to that effect, and that the several properties be, and the same are, hereby condemned as forfeited to the United States.

Sales were subsequently made under a venditioni exponas issued in due form; and the defendant in the first case and the plaintiff in the second case became the purchasers of the respective properties in controversy in these two suits.

Beyond all doubt, the title of the defendant in the first and the plaintiff in the second is perfect and must prevail, unless the claim set up by the plaintiff in the first suit and that set up by the defendants in the second can be sustained, both of which depend substantially upon the same state of facts.

Legal seizure of the property condemned was made on the 29th of July, 1863, and the record shows that the information was filed on the 7th of August following. Judgment was rendered Fed. 3, 1865, and the sale followed under the writ of venditioni ...


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