# Corbett v. Nutt

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United States Supreme Court
77 U.S. 464
Corbett v. Nutt
ERROR to the Supreme Court of Appeals of Virginia; the case being thus:
The seventh section of the act of June 7th, 1862, for the collection of direct taxes in insurrectionary districts, after directing the advertisement and sale of lands, upon which taxes due the United States remained unpaid, after a time specified, enacts--
By a first clause, that the owner of the land, or any loyal person of the United States having any interest in it, may at any time, within sixty days after the sale, appear before the board of tax commissioners, in proper person, and redeem it from sale upon paying the amount of the tax and penalty, with the interest and expenses prescribed, and taking an oath, if a citizen, to support the Constitution of the United States.
And by a second clause, that if the owner of the land be under a legal disability, the trustee, or other person having charge of the person or estate of such owner, may redeem at any time within two years after the sale.
An act of March 3d, 1865, amendatory of the act just mentioned, enacts that when a redemption is made the board of tax commissioners shall certify the fact to the Secretary of the Treasury, and that he shall repay the purchaser, by draft on the treasury, the principal and interest of the purchase-money; and that the purchaser shall deliver possession to the owner redeeming.
It also enacts, 'that no owner shall be entitled to redeem unless, in addition to the oath prescribed by existing laws, he shall swear that he has not taken part with the insurgents in the present rebellion, or any way given them aid or comfort, and shall satisfy the board of commissioners that the said oath is true.'
An act of July 17th, 1862, originating like the other two in the exigencies of the late civil war, and entitled 'An act to suppress insurrection, to punish treason and rebellion, to seize and confiscate the property of rebels, and for other purposes,' enacts by its fifth section, 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, money, stocks, credits, and effects of the persons' thereinafter named, 'and to apply and use the same, and the proceeds thereof, for the support of the army of the United States.'
The section then enumerates six classes of persons whose property is thus made subject to seizure. The fourth class embraces persons 'who, having held an office of honor, trust, or profit under the United States, shall thereafter hold office in the so-called Confederate States.'
The sixth section enacts that if any person within any State or Territory of the United States, other than those named in the previous section, being engaged in armed rebellion against the United States, or aiding or abetting such rebellion, shall not, within sixty days after public warning and proclamation by the President of the United States, cease to aid, countenance, and abet such rebellion, and return to his allegiance to the United States, all the estate and property, money, 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.
It continues:
'And all sales, transfers, or conveyances of any such property, after the expiration of the said sixty days from the date of such warning and proclamation, shall be null and void; and 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.'
[The proclamation of the President was made July 25th, 1862.]
The seventh section directs the proceedings to be instituted for the condemnation and sale of the property seized.
With these enactments of June and July, 1862, in force, Mrs. Louisa Hunter died, April, 1863, seized of a tract of land consisting of sixty acres, situated in the county of Alexandria, in the State of Virginia, leaving a last will and testament, by which she devised the premises, along with certain real estate in the city of Washington, to one W. D. Nutt, in trust for Marion Young, her adopted daughter, and Emily Featherstonaugh, her niece, both of whom were then and still are married women.
Prior to the war Mrs. Hunter resided in the county of Alexandria, in Virginia, but after the occupation of Alexandria by the forces of the United States, she went within the Confederate lines, and there remained until her death.
Immediately preceding the commencement of the war, Nutt held an office under the government of the United States. This he resigned in February, 1861, and in September following went within the Confederate lines, and took office under the Confederate government, which he held at the time of Mrs. Hunter's death.
On the 29th of February, 1864, the land in Virginia was sold for taxes due the United States under the first of the above quoted acts of Congress, the act, namely, of June 7th, 1862, providing for the collection of direct taxes in insurrectionary districts within the United States; and at the sale one W. P. Corbett became the purchaser, received the commissioners' certificate of sale, and took possession of the premises under the title thus acquired.
In July, 1865, the cestuis que trust, under the will of Mrs. Hunter, filed a bill in the Supreme Court of the District of Columbia to obtain the appointment of a new trustee in place of the one named in the bill, setting forth that the testatrix had left a large and valuable estate, the greater part of which lay within the District; that the settlement of the estate was impossible, by the terms of the will, without the intervention of the trustee named therein, or another in his stead, invested with his powers and duties; and that they were informed that the trustee named declined to qualify, or to accept the trusts reposed in him.
Nutt appeared to the suit and answered the bill, admitting that he was the person named in the will, and that he had declined to accept the trust thereunder. The court thereupon, at the hearing, adjudged that the complainants, the cestuis que trust, were entitled to the relief prayed, and by its decree appointed J. D. McPherson, of Washington, D. C., trustee, in 'the name, place, and stead,' 'clothed with all the powers and charged with all the duties reposed and vested in said Nutt as trustee, by the testatrix mentioned in the will,' first requiring of him the execution of a bond in the penal sum of ten thousand dollars, conditioned for the faithful performance of his trust.
On the 10th of February, 1866, McPherson, as trustee, appeared before the tax commissioners and paid to them the several sums required for the purpose of effecting a redemption of the property from the tax sale, and received from them a certificate of redemption, stating the payments made by him, and that he had taken an oath to support the Consitution of the United States; and that Marion Young and Emily Featherstonaugh, owners of the property, and married women at the time of the sale, and still under the same disability, had sworn that they had not taken part with the insurgents in the rebellion, or in any way given them aid or comfort, and had satisfied the commissioners that the oath was true.
Nutt, the trustee appointed by Mrs. Hunter's will, now brought suit in one of the State courts of Virginia to recover the property, and on the trial offered in evidence the certificate of redemption against the objection of the defendant that the redemption was illegal and did not sustain the claim of the plaintiff. The court admitted it. To this ruling of the court the defendant excepted.
The testimony being closed, the defendant requested instructions thus:
1. If the jury shall believe from the evidence that Nutt, the plaintiff, who sues as trustee, held a position under the government of the United States, and resigned said office, went voluntarily within the lines of the Confederate States, and accepted office under the Confederate government, and held said office at the time of the death of the testatrix, and that the said Louisa Hunter was a resident of the county of Alexandria at the time of the breaking out of the civil war, and after its breaking out went voluntarily into the Confederate lines and resided therein up to the time of her death, and that the premises in the summons described were at all times in the military lines and under the jurisdiction of the United States, then that said devise to the plaintiff was inoperative to pass or transfer any title to him, and he cannot therefore recover in this action.
2. That to enable the plaintiff to recover in this action, he must show that the certificate of redemption was forwarded to the Secretary of the Treasury, and the defendant repaid his purchase-money by draft drawn on the treasury of the United States.
The object of the instruction prayed, the defendant stated in his petition to the Court of Appeals of Virginia, was to raise the question as to the effect and meaning of the sixth section of the above-quoted act of Congress of the 17th of July, 1862, 'to suppress insurrection, punish treason,' &c.
The court refused to give the instructions thus asked for, and the defendant excepted. Verdict and judgment having gone for the plaintiff, the case was taken to the Supreme Court of Appeals of Virginia, which sustained the judgment. The case was now brought here under the 25th section of the Judiciary Act; the only ground of error alleged in this court being that there was drawn in question the construction of,
1st. The act of Congress of June 7th, 1862, 'for the collection of direct taxes in the insurrectionary districts within the United States, and for other purposes.'
2d. The act passed July 17th, 1862, 'to suppress insurrection, to punish treason and rebellion, to seize and confiscate the property of rebels, and for other purposes.'
3d. The act of March 3d, 1865, amendatory of this last act.
And that the decision of the Supreme Court of Appeals of Virginia was adverse to the right and title claimed under the said acts.
Messrs. G. W. Brent and C. W. Wattles, for the plaintiff in error:
One of several points argued and passed on in the court below, was of course the point whether, after his answer in the Supreme Court of the District, that he had declined to accept the trusts under Mrs. Hunter's will, Nutt was still trustee and could maintain a suit to recover the land, even admitting that the redemption was rightly made. If that matter is open in this court, it deserves consinderation. Passing it by, however, we come to the matters excepted to.
1. As to the evidence. The certificate ought to have been excluded, for it proved on its face that the redemption was bad. It describes McPherson as 'trustee.' But he was not trustee of this land, for the court of the District of Columbia could not appoint a trustee for lands in Virginia; and as trustee of such land he had no power to redeem. It is in vain to say that he redeemed as a person 'having charge' of the person or estate of the owner. The case does not show that he had any charge of this land, in another State, still held in trust by a recognized trustee, if this suit is rightly brought by Nutt. On the contrary, as trustee of land in the District alone, he could have no lawful charge of the other land; and the fact of Nutt's now bringing suit, indicates rather that he, if any one, and not McPherson, had the care of it. There is nothing which shows any relation in McPherson to the two ladies except as he got it from the court in the District, which could not give him charge of lands out of it.
2. As to the instructions refused. The first one should have been given. The act of 17th July, to suppress insurrection, &c., makes by plain terms 'null and void' 'all sales, transfers, and conveyances' of persons 'aiding and abetting' the rebellion; and by it Mrs. Hunter was prevented from selling, transferring, or conveying any estate and Nutt from accepting any. When Mrs. Hunter left loyal territory to go, and went, into the rebel lines, she became a rebel, for it has been settled that all the citizens of the rebel 'government' became enemies to the United States. Moreover, a person holding by devise, holds, in the language of the law, 'by purchase.' Where there has been a purchase, there has, of necessity, been a sale. And, without resort to technical rules, a devise must be admitted to be 'a transfer.' It has been decided to be 'a conveyance.' We have thus the case of a rebel, 'selling, transferring, conveying;' and of an office-holder, who transfers the scene of his officeholding, attempting to take. But the statute declares all 'null and void.' It cannot be said that no one but the United States can object. The statute was a measure of war. It comes, and was meant to come like 'a tyrant;' its purpose was to inflict the greatest possible injury; to make war short, by making it sharp and decisive. Office found may be dispensed with by the sovereign; and under this statute it was dispensed with, and the invalidity of the transfer is allowed to be taken advantage of by any one concerned.
The second instruction refused should also have been given. The object of the provision in the amendatory act of March 3d, 1865, is twofold. First, to protect the treasury; secondly, to benefit the purchaser. It invests the secretary with a superintendency or revisory power over the tax commissioners. Before the owner is entitled to possession the secretary must be satisfied that the lands have been duly redeemed, and on being so satisfied he repays the purchaser, and not until then is the owner entitled to the possession.
Messrs. Carlisle and McPherson, contra:
The matter of Nutt's right to sue was a matter of local law decided affirmatively below, and not open as a Federal question for discussion here. We proceed to the exceptions.
1. Selling land for taxes with no actual notice to owners, is an extreme exercise of sovereign power; and as authorities show, the right of redemption being a right in favor of property, is to be liberally construed. Courts support it, and have presumed and intended against many probabilities in support of it. Now here it is sufficiently plain that McPherson had charge of this land. The oaths of the ladies made in furtherance of his purpose to redeem, show that at the time he redeemed he did have charge, and had it by their assent, for they were acting in furtherance of his purpose as he was of theirs. From the time of his appointment as trustee by the court of the District, his relation was necessarily confidential to them both. What so natural as that he, who had their moneys from the District property, should be in charge of property near it; the 'trustee' of it declining to take actual charge, and McPherson not being able under his appointment to act as trustee in his place? The statute does not speak of the time when the charge is to begin. If it be within two years, it is enough. The certificate was then rightly admitted.
2. The instructions asked for were rightly refused. There was no condemnation under the seventh section by the government. This justified the refusal of the first one. And the request for the second proceeds on a misconception of the act on which the request was founded.
Mr. Justice FIELD delivered the opinion of the court.

## Notes

* ↑ 12 Stat. at Large, 423, 424.
* ↑ 13 Stat. at Large, 502.
* ↑ 12 Id. 590.
* ↑ Mrs Alexander's Cotton, 2 Wallace, 404; The Venice, Ib. 258.
* ↑ Seabura v. Seaburn, 15 Grattan, 423.
* ↑ Smith v. Maryland, 6 Cranch, 286.
* ↑ Patterson v. Brindle, 9 Watts, 100; Gault's Appeal, 33 Pennsylvania State, 94; Dubois v. Hepburn, 10 Peters, 1.
* ↑ Fairfax v. Hunter, 7 Cranch, 603.
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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