# Day v. Micou

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United States Supreme Court
85 U.S. 156
Day v. Micou
ERROR to the Supreme Court of the State of Louisiana.
An act of Congress, Commonly called the Confiscation Act, passed July 17th, 1862, 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 offences 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 such States, or agents of the same, or officers or agents of some one 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.'
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 property the said Benjaming 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 15th, 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.
Mr. Madison Day, appellant, propri a person a:
The court below erred, among other ways,
1st. In its view that no estate but the life estate of Mr. Benjamin passed, and 2d. In its view that the mortgage of Madame Micou was not discharged.
1. The Confiscation Act, as it is called, is an exercise of both sovereign authority and the belligerent right of confiscating enemy property on land during a state of war.
The first four sections of the statute relate to the punishment of treason and rebellion. This is an exercise of sovereign authority, and constitutes alone the criminal portion of the act. The other provisions of the act providing for the seizure and condemnation of the property seized, 'as enemies' property,' is but an exercise of the bellingerent right of confiscating enemy property in time of war.
These different provisions of the act are, therefore, to be taken and regarded as distinct from each other, as if they were embodied in two separate acts. The one relates to citizens and proceedings in time of peace; the other relates to enemies and proceedings in time of war. And they also differ from each other as to the mode of procedure and the rules of law which apply to and govern the same. A resolution or provision of law, therefore, which only embraces the one cannot be said to extend to and include the other. And this being so, it follows, as a matter of course, that the joint resolution which says 'nor shall any punishment or proceedings under the act be so construed as to work a forfeiture of the real estate of the offender beyond his natural life,' only applies to punishments and proceedings against offenders under the criminal portion of the act, and does not extend to or limit the confiscation of property under the other provisions of the statute, as enemies' property, to a mere life estate.
2. As it is provided in the Confiscation Act that the proceedings were to be in rem, and that if the property seized was found to belong to a person named in the act, the same was to be condemned as enemies' property, it follows as a matter of course, that the operation and effect of the decree of condemnation and sale must be the same as that which attaches to other decrees and sales in a proceeding in rem. Now what is the known and established operation and effect of a decree and sale in rem? In the Propeller Commerce, the court says:
'Process in rem is founded on a right in the thing, and the object of the process is to obtain the thing itself, or a satisfaction out of it, for some claim resting on a real or quasi proprietary right in it.'
In such a proceeding there are no adversary parties-no personal defendant. The thing itself is seized and impleaded as the defendant. But all persons who have any claim upon, or right in or to the thing, may, if they choose, come in as claimants and propound their interest in the thing and be heard, and are, therefore, deemed parties and bound accordingly, whether any party actually appears or not. Hence all persons who have this right may be, and are fairly considered as parties to the suit, and bound by the result thereof. Every party in interest is, therefore, estopped by a decree in rem from disputing the judgment, which, as is well said by the court in Parker v. Overmann, 'is conclusive against the absent claimant as well as the present contestant.'
Mr. Thomas Allen Clarke (whom the court declined to hear), contra.
Mr. Justice STRONG delivered the opinion of the court.

## Notes

* ↑ 12 Stat. at Large, 589.
* ↑ See Forrest v. Bigelow, 9 Wallace, 341.
* ↑ 1 Black, 580-1.
* ↑ 18 Howard, 140.
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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